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A High-Tech War on Leaks

In the 1976 film “All the President’s Men,” Robert Redford plays Bob Woodward, who waits for his source in a parking garage.Credit
Warner Bros.

Washington

BACK in 2006, before the Obama administration made leak prosecutions routine, a panel of three federal appeals court judges in New York struggled to decide whether a prosecutor should be allowed to see the phone records of two New York Times reporters, Judith Miller and Philip Shenon, in an effort to determine their sources for articles about Islamic charities.

“I’ve been thinking about the scene in ‘All the President’s Men,’ ” said Judge Robert D. Sack, citing the leading cinematic precedent. He meant the part where Bob Woodward, in the process of unraveling the Watergate scandal for The Washington Post, meets his source in an underground parking garage.

“First of all,” Judge Sack asked, “do you really have to meet in a garage to maintain your confidentiality? Second of all, can the government go and subpoena the surveillance camera?”

Six years and six prosecutions later, those questions seem as naïve as their answers are obvious: yes and yes.

It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.

The changes have unsettled a decades-long accommodation between national security and press freedom, one in which the government did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed. Even the administration of George W. Bush, no friend of leaks, more or less stuck to this script.

“The government does not pursue every leak,” said Mark Corallo, who served as the Justice Department’s spokesman in Mr. Bush’s administration. “On balance, it is more important that the media have the ability to report. It’s important to our democracy.”

That does not seem to be the view of the Obama administration, which has brought more prosecutions against current or former government officials for providing classified information to the media than every previous administration combined.

“It increases the level of paranoia,” Steven Aftergood, an expert on government secrecy at the Federation of American Scientists, said of recent trends. “As security has been ratcheted up, so has the anxiety of many government officials about dealing with the press and the public.”

Mr. Corallo, who served under Mr. Bush’s attorney general John D. Ashcroft, said he was “sort of shocked” by the volume of leak prosecutions under President Obama. “We would have gotten hammered for it,” he said.

The current administration attributes the volume of prosecutions to happenstance and the availability of evidence, rejecting accusations of politically motivated selective prosecution.

“The Justice Department has always taken seriously cases in which government employees and contractors entrusted with classified information are suspected of willfully disclosing such classified information to those not entitled to it,” a department official explained. “As a general matter, prosecutions of those who leaked classified information to reporters have been rare, due, in part, to the inherent challenges involved in identifying the person responsible for the illegal disclosure and in compiling the evidence necessary to prove it beyond a reasonable doubt.”

MR. ASHCROFT authorized a single subpoena for reporters’ testimony or records in his four years in office, Mr. Corallo said. He would not say so, but that subpoena was probably the one that troubled Judge Sack in 2006. The reporters lost. In a dissent, Judge Sack said he feared for the future.

“Reporters might find themselves,” he wrote, “as a matter of practical necessity, contacting sources the way I understand drug dealers to reach theirs — by use of clandestine cellphones and meeting in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate.”

What he imagined may now be reality. Consider the most recent prosecution, of John C. Kiriakou, a former C.I.A. agent who is said to have disclosed classified information to journalists in 2008 about the capture and interrogation of an operative of Al Qaeda.

Daniel Ellsberg, who provided the secret history of the Vietnam War known as the Pentagon Papers to The New York Times, said he was deeply troubled by the charges.

“The Kiriakou indictment for leaking” the identities of C.I.A. officers involved in a program that many people called torture, he said, “is particularly disgusting in the context of zero indictments for actually torturing, or for directing torture, or for writing spurious legal justifications for it.”

The criminal complaint in the case says it is based largely on “e-mails recovered from search warrants served on two e-mail accounts associated with Kiriakou.”

Mr. Aftergood said the complaint provided both vivid glimpses of interactions between reporters and sources and proof of a new era in surveillance.

“The Kiriakou complaint is astonishing,” he said, “because you see the government delving into the innards of the news production process.”

Only one of the journalists involved in the Kiriakou case has been publicly identified: Scott Shane of The Times. A spokeswoman for The Times has said that neither the paper nor Mr. Shane had been contacted by investigators or had provided any information to them. The digital trail, it seems, was enough.

In a second case, against Jeffrey A. Sterling, a former C.I.A. officer accused of providing classified information to another Times reporter, James Risen, for a 2006 book, the government has been more aggressive, insisting that Mr. Risen must testify. He has refused to say anything about confidential matters, and Judge Leonie M. Brinkema of the Federal District Court in Alexandria, Va., has sided with him. She said there were other ways to prove the case against Mr. Sterling, including “numerous telephone records, e-mail messages, computer files and testimony that strongly indicates that Sterling was Risen’s source.”

The government has appealed that ruling. “The circumstantial evidence of guilt, though compelling, is simply not comparable to Risen’s eyewitness testimony,” prosecutors told the federal appeals court in Richmond, Va., in a brief filed last month.

The appeal in Mr. Risen’s case may, at first blush, suggest that the new primacy of digital surveillance in leak investigations is overstated. But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was a vestige of another era.

She described a conference in June organized by the Aspen Institute that brought together lawyers, journalists and intelligence officials to talk about government secrecy. The ground rules, she said, were that the identities of those involved were to be kept confidential, but what was said could be reported.

“I was told in a rather cocky manner” by a national security representative, Ms. Dalglish recalled, that “the Risen subpoena is one of the last you’ll see.”

She continued, paraphrasing the official: “We don’t need to ask who you’re talking to. We know.”

The solution for reporters, Ms. Dalglish said, is to adopt Mr. Woodward’s methods from the 1970s. “For God’s sake, get off of e-mail,” she said. “Get off of your cellphone. Watch your credit cards. Watch your plane tickets. These guys in the N.S.A. know everything.”

Mr. Corallo, the former Justice Department spokesman, provided corresponding advice to government officials. “Don’t be stupid and use e-mail,” he said. “You have to meet a reporter face to face, hand him an envelope and walk away quickly.”

Adam Liptak is the Supreme Court correspondent for The New York Times.

A version of this news analysis appears in print on February 12, 2012, on page SR5 of the New York edition with the headline: A High-Tech War on Leaks. Order Reprints|Today's Paper|Subscribe